The Human Rights Committee
established under article 28 of the International Covenant on Civil and
Political Rights:

Meeting on 8 April 1985,

Having concluded its
consideration of Communication No. 89/1981 submitted to the Committee by
Paavo Muhonen under the Optional Protocol to the International Covenant on
Civil and Political Rights,

Having taken into account all
written information made available to it by the author of the communication
and by the State party concerned,

Adopts the following:

Views
under article 5, paragraph 4, of the Optional Protocol

1. The author of the
communication (initial letter dated 28 March 1981 and further submissions of
20 September 1981 and 25 January 1982) is Paavo Muhonen, a Finnish citizen,
horn on 17 February 1950, employed as a librarian in Finland. He states that
he is a conscientious objector to military service and, alleging that his
ethical conviction has not been respected by the Finnish authorities, claims
to be a victim of an infringement of the right to freedom of conscience, in
violation of article 18, paragraph 1, of the International Covenant on Civil
and Political Rights. The facts of the claim are as follows.

2.1 In August 1976, at
that time eligible for military service, Mr. Muhonen applied to the Military
Service Examining Board to be permitted, on profound ethical grounds and in
accordance with existing law (Unarmed and Alternative Service Act, 1969), to
do alternative service subject to the civil authorities, instead of armed or
unarmed service in the armed forces. By its decision of 18 October 1977, the
Examining Board rejected the application on the ground that Mr. Muhonen had
not proved that serious moral considerations based on ethical conviction
prevented him from doing armed or unarmed military service and ordered that
he should do armed service (with the details of posting and the time for
reporting for duty to be communicated to him at a later date). The
proceedings before the Examining Board were conducted in writing. Mr.
Muhonen did not avail himself of the opportunity to appear personally before
the Examining Board, both because it was inconvenient for him to travel a
long distance for a hearing and also because the Examining Board had
indicated to him that a decision could be taken in his absence. Mr. Muhonen
therefore concluded that his presence was not necessary and that his absence
would not affect the disposition of the matter. Being dissatisfied with the
decision of the Examining Board, Mr. Muhonen (as he was entitled to under
the law) appealed to the Ministry of Justice to change the decision of the
Examining Board. By a decision of 21 November 1977, the Ministry of Justice
concluded that 'no cause for changing the decision of the Military Service
Examining Board [had] been shown' and upheld the decision of the Examining
Board. The text of the decision of the Ministry of Justice also states that
under the law "this decision is not subject to appeal".

2.2 On 13 February 1978,
Mr. Muhonen resubmitted to the Military Service Examining Board a
declaration of refusal to bear arms. The Examining Board decided, on 1
September 1978, not to examine Mr. Muhonen's renewed declaration, "as the
Ministry of Justice [had] already adopted a decision in this case". Mr.
Muhonen again appealed to the Ministry of Justice, asking that he be called
up for alternative service. In a decision of 3 November 1978, the Ministry
of Justice, taking the view that the Examining Board should not have left
Mr. Muhonen's declaration without a hearing on the grounds invoked, decided
not to return the matter to the Board in view of the fact that the
circumstances of the case were already clarified, but to give it direct
consideration, reaching the conclusion that no cause had been shown for
changing the final decision which the Examining Board had reached in its
decision of 18 October 1977 and on the appeal against which the Ministry of
Justice had adopted a decision on 21 November 1977. Again, the text of the
decision of the Ministry of Justice stated that it was not subject to
appeal."

2.3 In the meantime, i.e.
before the Examining Board and the Ministry of Justice acted on his
submission of 13 February 1978, Mr. Muhonen was called up for military
service (15 February 1978). He reported to the military unit where he had
been posted and there refused to do any military service. He was furloughed
the same day. Criminal court proceedings were then initiated against Mr.
Muhonen for refusal to do military service and an ordinary court of first
instance sentenced him to 11 months imprisonment on 13 December 1978. The
Eastern Finland Higher Court confirmed that verdict on 26 October 1979, and
Mr. Muhonen started to serve his sentence on 4 June 1980.

2.4 In the autumn of 1980,
Mr. Muhonen applied for a new hearing before the Military Service Examining
Board, which acceded to this request and now found in favour of Mr. Muhonen.
In a decision of 2 February 1981 the Examining Board stated as follows:

"The Military Service Examining
Board, having studied the documents relating to the original refusal to hear
arms which are in the possession of the Ministry of Justice, and having
provided Mr. Paavo Juhani Muhonen with an opportunity to explain his
convictions personally to the Board, has considered Mr. Muhonen's
application and has found that Mr. Muhonen who, as may be believed on the
basis of a conversation which has now taken place, has an ethical conviction
within the meaning of the Unarmed and Alternative Service Act (132/69) which
prevents him from doing armed or unarmed service in the armed forces and
who, having already reached the age of 30, may not be called up for service.

"Accordingly, this case requires
no further action by the Military Service Examining Board."

2.5 At this stage (2
February 1981) Mr. Muhonen had already been serving his 11 months' prison
sentence since 4 June 1980. It is stated on his behalf that a number of
persons then requested a presidential pardon in his case; that the case was
handed over by 'the Ministry of Justice to the Highest Court of Finland; and
that, as a result, Mr. Muhonen was pardoned on 27 March 1981 and released
from prison two weeks later. It is claimed, however, that Mr. Muhonen has
not been allowed any monetary relief for the wrongs which he has allegedly
suffered. The facts, as submitted, do not indicate which steps, if any, have
been taken by Mr. Muhonen, or on his behalf, to obtain such monetary relief.

2.6 As stated above (see
para. 1) Mr. Muhonen claims that the facts, as described, make him a victim
of a violation by Finland of his right protected by article 18, paragraph 1,
of the International Covenant on Civil and Political Rights reading as
follows:

Article 18

"1. Everyone shall have the
right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or
private, to manifest his religion or belief in worship, observance, practice
and teaching."

3. The Committee was of
the opinion that, in so far as the decisions of the Military Service
Examining Board and of the Ministry of Justice in 1977 and 1978, refusing
Mr. Muhonen's application to be exempted from service in the armed forces on
ethical grounds, raised a Question of compliance with article 18, paragraph
1, of the Covenant, the subsequent decision of the Examining Board of 2
February 1981 had already provided an answer in that respect and that
consequently no further Question of violation of that article arose.
Therefore, the Question whether article 18, paragraph 1, guaranteed a right
of conscientious objection to military service did not have to be determined
by the Committee in the present case. It observed, however, that the facts
of the case might still raise an issue under article 14, paragraph 6, of the
Covenant which the Committee should consider.

4.1 On 28 July 1982, the
Human Rights Committee therefore decided to transmit the communication to
the State party concerned under rule 91 of the provisional rules of
procedure, requesting information and observations relevant to the Question
of admissibility, in so far as the communication might raise issues under
article 14, paragraph 6, of the International Covenant on Civil and
Political Rights, which reads as follows:

Article 14

"...

"6. When a person has by a
final decision been convicted of a criminal offence and when subsequently
his conviction has been reversed or he has been pardoned on the ground that
a new or newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a result
of such conviction shall be compensated according to law, unless it is
proved that the non-disclosure of the unknown fact in time is wholly or
partly attributable to him."

4.2 In response, the State
party, on 29 October 1982, objected to the admissibility of the
communication on the ground that "in so far as the communication refers to
decisions of the Ministry of Justice, all local remedies bays not been
exhausted in this case, since the possibility of seeking the annulment of
the decision in the Supreme Administrative Court, which is open to the
author of communication, has not yet been used".

5.1 Considering that the
successive decisions of the Ministry of Justice handed to Mr. Muhonen had
already stated that there was no appeal from the decisions of the Ministry
of Justice, the Human Rights Committee requested further clarifications from
the State party as to the nature of the remedy which it now said had been
available to Mr. Muhonen.

5.2 The State party's
response, dated 21 June 1983, reads as follows:

"According to paragraph 6 of the
Act on Extraordinary 'Remedies in Administrative Affairs (200/66), the
extraordinary remedy of seeking the annulment of an administrative decision
can be used:

"1. If a procedural fault
has been made in the case that may have essentially affected the decision;

"2. If the decision is
based on an apparently faulty application of law or on a mistake that may
have essentially affected the decision;

"3. If such new
information has been obtained in the case that might have essentially
affected the decision and the appellant is not responsible for the omission
to present such information on time.

"In the case of this
extraordinary remedy, an application must be lodged with the supreme
administrative court within five years from the entry into effect of the
decision. If particularly weighty grounds exist, an extraordinary remedy may
be used after the set period of five years.

"The Ministry of Justice of
Finland considers that in the present case where normal procedure of appeal
is not available, an extraordinary remedy such as seeking the annulment of
decision[s] of the Ministry of Justice could have been an effective local
remedy. Owing to the fact that a decision of the Ministry of Justice under
section 6 of the Unarmed and Alternative Service Act cannot be subject to
appeal, similar cases have previously been brought up in the Supreme
Administrative Court on the basis of paragraph 6 of the Act on Extraordinary
Remedies in Administrative Affairs referred to above and have been decided
upon by the Court.

"The Ministry of Justice of
Finland considers that article 14, paragraph 6 of the Covenant does not
apply in the case of the decision of the city court of Joensuu of 13
December 1978 based on act No. 23 of 1970 on the punishment of certain
conscripts refusing to do regular military service, since the decision was
not in itself wrong. The Ministry of Justice states that Mr. Muhonen could
possibly have avoided the process through the use of the extraordinary
remedy of seeking the annulment of the decisions of the Ministry of
Justice.'

6.1 When considering the
admissibility of the communication, the Committee noted, with regard to
article 5, paragraph 2 (b), of the Covenant, that it could not accept the
State party's contention that the communication should be declared
inadmissible on the ground that the extraordinary remedy indicated by it had
not been used. In the first place, the author of the communication had
clearly been given to understand that there was no further remedy. Secondly,
having regard to the limited scope of the extraordinary remedy in question,
the State party did not show that there were grounds for believing that the
remedy could be or could have been effective in the particular circumstances
of the case.

6.2 With regard to the
State party's contention that article 14, paragraph 6, of the Covenant is
inapplicable in the circumstances of the present case, the Committee
observed that that was a matter for consideration on the merits of the
communication.

7. On 6 April 1984 the
Human Rights Committee therefore decided:

1. That the
communication was inadmissible in so far as it related to an alleged breach
of article 18, paragraph 1, of the International Covenant on Civil and
Political Rights, in view of the remedy obtained by the author of the
communication on 2 February 1981 (see paras. 2.4, 2.6 and 3 above);

2. That the
communication was admissible, in so far as it raised issues under article
14, paragraph 6, of the Covenant;

3. That, in accordance
with article 4, paragraph 2, of the Optional Protocol, the State party be
requested to submit to the Committee, within six months of the date of
transmittal to it of this decision, written explanations or statements
clarifying the matter and the remedy, if any, that may have been taken by
it.

8. In its submission
under article 4, paragraph 2, of the Optional Protocol, dated 22 October
1984, the State party again reviewed the facts of the communication and
concluded:

"The author of communication No.
89/1981 had been sentenced by a court of law on the basis of the law
concerning the punishment of certain conscripts who decline to do military
service (23/72). The legality of the sentence had been considered and
confirmed at the highest level of judicial review. The fact that the
Military Service Examining Board, by its decision of 2 February 1981,
considered that the conviction of the applicant had now been established
does not indicate that its earlier decisions or those of the Ministry of
Justice would have been at fault. Under no circumstances can the validity of
the decisions of the courts of law in this matter be Questioned.

"According to article 29 (1) of
the Constitution Act (94/19) if, due to changed circumstances, compliance
with a valid court decision is no longer equitable, the President can, in an
individual case, having received the opinion of the Supreme Court, pardon
the person concerned or make his sentence lighter. This is precisely what
happened in the case of the author of communication No. 89/1981.

"There was no 'miscarriage of
just ice' during the process. Therefore, article 14, paragraph 6, of the
Covenant does not apply. Nor has the applicant the right to compensation
under the Law on Compensation to Persons Who Have Been Innocently Imprisoned
or Convicted (422/74)."

9. The State party's
submission was duly forwarded to the author of the communication. No further
comments have been received from Mr. Muhonen.

10. The Committee, having
considered the present communication in the light of all information. made
available to it by the parties as provided for in article 5 (1) of the
Optional Protocol, decides to base its views on the facts as submitted by
the parties, which are not in dispute.

11.1 In considering the
merits of the communication, and bearing in mind the decision on
admissibility, the Human Rights Committee starts from the premise that
existing Finnish law grants certain categories of persons an option to do
alternative service instead of armed or unarmed service in the Finnish Armed
Forces. While Finland does have legislation allowing such an exemption, the
Committee recognizes that only the Finnish authorities are responsible for
evaluating each application for exemption under Finnish law.

11.2 The Committee's task is
limited to determining whether, in the particular circumstances 6f the case,
Mr. Muhonen was entitled to receive compensation in accordance with article
14, paragraph 6, of the Covenant. Such a right to compensation may arise in
relation to criminal proceedings if either the conviction of a person has
been reversed or if he or she "has been pardoned on the ground that a new or
newly discovered fact shows conclusively that there has been a miscarriage
of justice". As far as the first alternative is concerned, the Committee
observes that Mr. Muhonen's conviction, as pronounced in the judgement of
the city court of Joensuu on 13 December 1978 and confirmed by the Eastern
Finland Higher Court on 26 October 1979, has never been set aside by any
later judicial decision. Furthermore, Mr. Muhonen was not pardoned because
it had been established that his conviction rested on a miscarriage of
justice. According to the relevant Finnish statute, the Law concerning the
punishment of certain conscripts who decline to do military service (23/72),
whoever refuses military service not having been recognized as a
conscientious objector by the Examining Board commits a punishable offence.
This means that the right to decline military service does not arise
automatically once the prescribed substantive requirements are met, but only
after due examination and recognition of the alleged ethical grounds by the
competent administrative body. Consequently, the presidential pardon does
not imply that there had been a miscarriage of justice. As the State party
has pointed out in its submission of 22 October 1984, Mr. Muhonen's
pardoning was motivated by considerations of equity.

11.3 To be sure, Mr.
Muhonen's conviction came about as a result of the decision of the Examining
Board of 18 October 1977, denying him the legal status of conscientious
objector. This decision was based on the evidence which the Examining Board
had before it at that time. Mr. Muhonen succeeded in persuading the
Examining Board of his ethical objection to military service only after he
had personally appeared before that body following his renewed application
in the autumn of 1980, while in 1977 he had failed to avail himself of the
opportunity to be present during the Examining Board's examination of his
case.

12. Accordingly, the Human
Rights Committee is of the view that Mr. Muhonen has no right to
compensation which the Finnish authorities have failed to honour and that
consequently there has been no breach of article 14 (6) of the Covenant.